2013 P Cr. L J 229
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
ARAB ---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No.357 of 2008, decided on 24th October, 2012.
(a) Penal Code ( XLV of 1860) ---
----Ss. 302(b) & 302(c) ---Criminal Procedure Code (V of 1898), Ss. 164 & 364 ---Qanun -e-
Shahadat, (10 of 1984), Art. 37 ---Qatl-e-amd---Appreciation of evidence ---Sentence,
reduction in ---Confessional statement of accused recorded voluntari ly and promptly ---
Deceased contributing to his own death ---Effect ---Accused, who was a juvenile, allegedly
fired at the deceased ---Motive for the incident was a dispute over vacation of a rented shop ---
Accused recorded his confessional statement before the Magistrate but subsequently retraced
the same ---Trial Court convicted the accused under S.302(b), P.P.C. and sentenced him to life
imprisonment along with compensation of Rs.50,000 to be paid to legal heirs of deceased ---
Validity ---Accused voluntarily sur rendered before the police and handed over his crime
weapon ---Confessional statement of accused was recorded a day after his arrest, which
eliminated the possibility of use of coercion, inducement or persuasion ---Promptitude with
which confessional stateme nt of accused was recorded depicted voluntariness ---Judicial
Magistrate who recorded confessional statement of accused complied with all the necessary
formalities enumerated in Ss.164 and 364, Cr.P.C. ---Accused had brought nothing on record
to show that th e confession was not voluntary or the same was obtained through coercion,
maltreatment or inducement ---Retraction of confession by accused seemed to be palpably
false and incorrect and the only conclusion that could be drawn was that confessional
statement was recorded by accused voluntarily ---Confessional statement of accused stood
corroborated by motive, medical evidence and recovery of crime weapon ---Report of firearm
expert was not produced by the prosecution since crime weapon and empties were damaged
due to an explosion at the Forensic Science Laboratory ---Report of firearm expert hardly
made a difference in view of the confessional statement of the accused, which was adjudged
to be true and voluntary ---Doctor mentioned that time between death and exam ination of
accused was 2 to 4 hours, which corresponded with the time of occurrence as mentioned in
confessional statement of accused ---Prior to the incident deceased entered the house of
accused and misbehaved ---Accused apparently committed murder of dece ased to defend his
family honour and it appeared that it was immoral and improper act of the deceased himself,
which led or at least contributed to his ultimate murder ---Conviction of accused under
S.302(b), P.P.C. was converted to S.302(c), P.P.C. and hi s sentence of life imprisonment was
altered to fourteen years imprisonment along with compensation of Rs. 50,000 to be paid to
the legal heirs of deceased ---Appeal was dismissed accordingly.
(b) Criminal Procedure Code (V of 1898) ---
----S. 164 ---Conf ession, retraction of ---Burden of proof ---Scope ---When an accused person
retracted or resiled from his confession, then the onus lies on him that he did not record any
confession.
(c) Criminal Procedure Code (V of 1898) ---
----S. 164 ---Sole confession al statement of accused ---Conviction ---Scope ---Conviction could
be based on sole confessional statement, provided the same was voluntary and true.
State through A. -G. N. -W.F.P., Peshawar v. Waqar Ahmed 1992 SCMR 950 rel.
(d) Criminal Procedure Code ( V of 1898) ---
----S. 164 ---Confessional statement ---Inculpatory and exculpatory part, reliance on ---Scope --
-General rule was that confessional statement of accused was to be accepted as a whole, if the
conviction was based solely on his statement ---Confe ssional statement of accused in such a
case could not be relied upon in part by accepting inculpatory part and excluding exculpatory
part of it ---Exception to the general rule applied where conviction was not based solely on the
confession, in which case c onfession could be accepted in part by relying upon inculpatory
part and excluding the exculpatory part.
Faiz v. The State 1983 SCMR 76 rel.
(e) Criminal Procedure Code (V of 1898) ---
----Ss. 164 & 364 --- Oaths Act (X of 1873), S. 5 --- Confessional statement of accused
recorded on oath, reliance on ---Scope ---Confessional statement of accused should not be
recorded on oath ---Mere fact that judicial confession was recorded on oath, would not be
sufficient to reject the same, as it might only be a proc edural mistake in the form of an
irregularity in exercise of jurisdiction, which might not affect the statement in substance ---
Notwithstanding procedural defect in recording the confession, a judicial confession, if
voluntary and confidence inspiri ng, could safely be made basis of conviction.
Nazeer alias Wazir v. The State PLD 2007 SC 202 rel.
Mujeeb Ahmed Hashmi and Kushal Khan Kasi for Appellant.
Abdul Sattar Durrani, Additional P. -G. for the State.
Usman Yousafzai and Muhammad Hassa n Sherani for the Complainant.
Date of hearing: 15th October, 2012.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This criminal appeal is directed
against the judgment dated 3rd December, 2008 (the "impugned judgment"), passed by the
Sessions Judge/Juv enile Court, Loralai (the "trial Court"), whereby appellant Arab son of
Muhammad Sharif was convicted under section 302(b) of the P.P.C. and sentenced to suffer
life imprisonment and to pay an amount of Rs.50,000 (Rupees fifty thousand only) as
compensatio n to the legal heirs of deceased Bashir Ahmed as provided under section 544 of
the Criminal Procedure Code 1898 (Cr.P.C.), or in default whereof to further undergo six (6)
months' simple imprisonment (SI), with the benefit of section 382 -B of the Cr.P.C.
2. Complainant Abdul Rasheed in his Fard -e-Bayan (Exh.P/4 -B) dated 13th June, 2008
alleged that he was present in his house situated at Labour Colony, Loralai. At about 11 -30
p.m., the boys informed him that his son Bashir Ahmed is lying injured near the small gate of
the Masjid, at which he came out and saw his son in injured condition, who informed him
that he was fired at and injured by accused Arab with a Kalashnikov. The complainant and
his son Nazar Ahmed shifted the injured to civil hospit al. The motive behind the occurrence
was stated to be vacation of a rented shop. Consequently, a case vide Crime No.67 of 2008,
under section 324 of the P.P.C. was registered against the accused at Saddar Police Station,
Loralai. Subsequently, the injured, while shifting him to Quetta for further treatment,
succumbed to the injuries and, accordingly, section 324 of the P.P.C. was substituted to that
of section 302 of the P.P.C. in F.I.R.
3. After usual investigation, challan was prepared and the appellant was sent up to face
the trial. On the State allegations, a formal charge was framed and read over to the appellant,
to which he did not plead guilty and claimed trial. The prosecution, in order to prove its case,
produced four witnesses, viz. Dr. Amjad Pe rvaiz, Senior Medico Legal Officer, DHQ
Hospital, Loralai (P.W.1), Ahmed Khan, constable (P.W.2), Abdul Muqeet, Judicial
Magistrate, Loralai (P.W.3) and Noor Muhammad, SI/SHO, Investigating Officer (P.W.4).
4. After recording prosecution evidence, the ac cused/appellant was examined under
section 342 of the Cr.P.C., wherein once again he denied the charge and professed his
innocence, however, he did not opt to record his statement on oath under section 340(2) of
the Cr.P.C., but produced Jamal Bibi (D.W.1) in his defence.
5. Upon consideration of the evidence, adduced by the prosecution, the trial Court held
that the prosecution has succeeded in proving its case against the appellant/accused beyond
reasonable doubt and having held so, convicted and senten ced the appellant, as noted above.
6. Mr. Mujeeb Ahmed Hashmi, learned counsel for the appellant, contended that on the
basis of sole retracted confession, which, otherwise, not true and voluntary, no conviction
could have been awarded in absence of any corroboratory evidence. Learned counsel further
stated that the recovery of Kalashnikov as well as empties from the alleged place of
occurrence is also of no avail to the prosecution and no corroboration could be sought from it
qua retracted confession, as the same were not sent to Forensic Science Laboratory (FSL) for
expert's opinion, as such, the conviction is not sustainable under the law.
7. Mr. Muhammad Usman Yousafzai, learned counsel for the complainant, while
supporting the judgment of the trial Court, argued that the judicial confession was rightly
believed by the trial Court being voluntary in nature and the appellant has given truthful
account of the incident and further that conviction can be based on the sole
confessional statement, provided the same bears truth and is confidence -inspiring.
8. We have given due consideration to the arguments and have gone through the
evidence with the valuable assistance of both the counsel for the parties. After having gone
through the entire record, we are of the view that the prosecution has established the guilt of
the appellant to the hilt. The record reflects that the appellant was arrested on 13th June, 2008
and confessional statement was recorded on 14th June, 2008, which eliminates the possibility
of use of coercion, inducement or persuasion. The promptitude with which the confessional
statement was got recorded depicts voluntariness.
9. We have also gone through the statement of learned Judicial Magistrate, who
recorded the confessional statement of the appellant, which revealed that all the necessary
formalities as enumerated in section 364 of the Cr.P.C. were complied with prior to recording
of statement under section 164 of the Cr.P.C. We have noticed that during cro ss-examination,
the defence counsel had suggested to P.W.3 Abdul Muqeet, Judicial Magistrate that the
confessional statement was the result of maltreatment and coercive measure, but, quite
surprisingly, the appellant, by taking a somersault, has completely negated the said version
while answering question No.7 in his examination got recorded under section 342 of the
Cr.P.C. and stated that he was not produced before the Judicial Magistrate for the purpose. It
is well -settled that when an accused person retr acts or resiles from his confession, then the
onus lies on him that he did not record any confession. The appellant has brought nothing on
record to show that the confession was not voluntary or the same was obtained through
coercion, maltreatment or induc ement. Thus, in our considered view, retraction of the same
seems to be palpably false and incorrect and the only irresistible conclusion would be that the
confessional statement was got recorded by the appellant voluntarily and at his own.
10. Adverting to the next contention that conviction cannot be based on the sole
confessional statement, it may be observed that the incident was un witnessed; and after
commission of the offence, the appellant voluntarily surrendered himself before the police
authorit ies and besides handing over the crime weapon i.e. Kalashnikov, also got recorded his
confessional statement on very next day of his arrest. It is by now well settled that conviction
can be based on the sole confessional statement, provided the same is vol untary and true. By
holding this view, we are fortified from a case of State through A. -G., N. -W.F.P., Peshawar
v. Waqar Ahmed, 1992 SCMR 950, wherein Hon'ble Supreme Court observed as under: --
"When an accused has given an account of the incident and it s truth is not doubted
and such statement is proved to be correct in all its parts, such solitary piece of
evidence can be used against the accused without any further corroboration. There is
no basic difference between a confession or a retracted confessi on, if the element of
truth is not missing. It is always a question of fact which is to be adjudged by the
Courts on the attending circumstances of a particular case. In this case, we have come
to the irresistible conclusion that the confessional statement of the accused is true and
voluntary and conviction could be recorded on such statement."
It may be noted that the confessional statement stands corroborated by motive,
medical evidence and recovery of crime weapon. It is true that the report of Fire -arm Expert
was not produced by the prosecution to show that the empties secured from the place of
occurrence were wedded with the Kalashnikov recovered from possession of the appellant,
but it is equally true that in this regard an explanation was given by the Investigating Officer,
as the same were damaged due to explosion at FSL Crimes Branch, Quetta. Thus, it hardly
makes any difference, as the above said fact has been admitted by the appellant himself in his
confessional statement, which has been adjudge d as true and voluntary.
11. Similarly, the confessional statement also finds corroboration from medical evidence,
furnished by Dr. Amjad Pervaiz (P.W.1), who found the following injuries on the dead body
of Bashir Ahmed: --
(1) "A small circular wound, on the right side of the lower chest (i.e., wound of
entrance) 2 cm x 2 cm deep entrance, with fresh blood.
(2) Burst wound on the epigastic region tearing muscle, tissue deep with fresh
blood (i.e., wound of exit)."
According to the doctor' s opinion, death was caused due to circulatory collapse with
excessive bleeding and the injuries were caused with firearm. The time mentioned by the
doctor between death and examination was 2 - 4 hours, which also corresponds with the time
of occurrence as mentioned in confessional statement (Exh.P/3 -B).
12. It is also worth -mentioning that the appellant, while recording his confessional
statement, has given the motive of firing at deceased Bashir Ahmed. The motive, which was
only known to him as well as to the inhabitants of the house, wherein the occurrence took
place, came from the mouth of the appellant and D.W.1 Mst. Jamal Bibi, who categorically
stated that on the fateful night at about 11 -30 p.m., Bashir Ahmed (deceased) entered in
the hou se and misbehaved with Mst. Gul Makai.
13. The only question, which now remains to be answered, is as to whether the
confessional statement of accused can be accepted in part or as a whole? The general law is
that the confessional statement of the accused is to be accepted as a whole, if the conviction is
based solely on his statement. In such a situation, the statement of the accused cannot be
relied upon in part by accepting inculpatory part and excluding an exculpatory part of his
statement. How ever, there is exception to the general rule, that is, if the conviction is not
based solely on the confession, then law permits that the same can be accepted in part by
relying upon inculpatory part and excluding the exculpatory part of his statement. Thi s view
finds support from a case Faiz v. The State 1983 SCMR which is as under: --
"8. The judgment of the High Court makes it abundantly clear that the ocular evidence
was totally discarded and the only material utilized by the Court for determining the
guilt of the appellants was the "defence version." There were no proved or established
facts to test the defence version. This distinguishes the decision in Imamudain's case
which had proved or established facts. In Balmakund's case a reference to Full Ben ch
of the High Court became necessary because the Judges hearing the case found the
exculpatory part of the statement of the accused to be so unworthy of belief that no
Court could act upon them. The Full Bench noted that during the last one hundred
years the following two rules of criminal jurisdiction have been consistently observed
without any attempt to engraft as exception: --
(a) where there is other evidence a portion of the confession may, in the light of
that evidence, be rejected while acting upo n the remainder with the other evidence.
(b) where there is no other evidence, the Court cannot accept the inculpatory
element and reject the exculpatory element as inherently incredible."
In the attending facts and circumstances, while placing implic it reliance on the above
cited rulings of law as laid down by the Hon'ble Supreme Court of Pakistan in connection
with to evaluate and assess the confessional statement of the accused when the conviction is
based solely on his such statement, we rely upon the confessional statement as a whole. We
noticed that on 12th June, 2008 at about 11 -30 p.m., deceased Bashir Ahmed entered the
house of the accused and started misbehaving with his cousin; viz, Gul Makai, leading to the
instant unpleasant incident, which culminated in unfortunate death of deceased Bashir
Ahmed. We can safely conclude that the occurrence was result of the reasons as stated by the
appellant in his confessional statement in order to save his family honour and the act of the
accused is to be adjudged at the touchstone of evidence available on record in accordance
with the principle of administration of justice. It appears that the appellant committed the
offence in an effort to defend his family honour. It, thus, appears that it was immoral or
improper act of the deceased himself, which had led or had at least contributed to his ultimate
murder.
14. We are in agreement with learned counsel for the appellant that the confessional
statement of an accused should not be recorded on oath , but mere fact that a judicial
confession was recorded on oath, would not be sufficient to reject it, as it may be only
procedural mistake in the form of an irregularity in exercise of jurisdiction, which may not
affect the statement in substance. It is s ettled proposition of law that notwithstanding
procedural defect in recording the confession, a judicial confession, if it is found true,
voluntary and confidence inspiring, can safely be made basis of conviction. In this regard,
reference can be made to a case of Nazeer alias Wazir v. The State PLD 2007 SC 202,
wherein it was held as under: --
"8. The provisions of sections 164, Cr.P.C. and 364, Cr.P.C. invariably apply to all
sorts of statements and as confessional statement recorded under section 164, C r.P.C.
on oath is violative of section 5 of the Oaths Act, 1873 which prohibits the
administration of oath or affirmation to an accused person, therefore, the question for
consideration would be whether a confessional statement which was recorded on oath,
if caused no prejudice or injustice to the accused, is admissible in evidence or not.
The rule enacted in section 5 of Oaths Act, 1873, is based on the concept that law
does not compel an accused to make a confession and he is under no obligation to
speak the truth but if he willingly and voluntarily makes a judicial confession his
statement is an evidence and thus in the light of this principle the administration of an
oath or affirmation to an accused is considered not based on public policy and is an
illegality in law. This rule of English Law, in principle, is not in conflict with the
principles governing the criminal administration of justice in Islam except that a
Muslim is not supposed to tell a lie before the Court and must speak truth."
15. In vie w of the above, we convert the conviction of the appellant from section 302(b)
of the P.P.C. to that of section 302(c) of the P.P.C. and alter the sentence of life imprisonment
to that of fourteen (14) years' rigorous imprisonment (RI). The appellant shall also pay
compensation amount of Rs.50,000 to the legal heirs of the deceased, or in default whereof to
further undergo SI for six (6) months. He shall also be entitled to the benefit of section 382 -B
of the Cr.P.C.
With the above modification in the qu antum of sentence of imprisonment of the
appellant, the appeal, being without any substance, is dismissed. The aforesaid modified
sentences of the appellant shall order to run concurrently with the conviction and sentence
awarded to him in connected Arms C ase No.1 of 2008, arising out of F.I.R. No.68 of 2008,
under section 13(e) of the Pakistan Arms Ordinance, 1965 registered at Saddar Police Station,
Loralai, which is subject -matter of Criminal Appeal No.211 of 2009.
MWA/100/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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